[Federal Register Volume 63, Number 115 (Tuesday, June 16, 1998)]
[Notices]
[Pages 32820-32825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15872]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-405-071]
Viscose Rayon Staple Fiber From Finland: Final Results of
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration, U.S.
Department of Commerce.
ACTION: Notice of final results of antidumping duty administrative
review.
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SUMMARY: On December 10, 1997, the Department of Commerce published the
preliminary results of its administrative review of the antidumping
duty finding on viscose rayon staple fiber from Finland. This review
covers one company, Kemira Fibres Oy, and the period of March 1, 1996
through February 28, 1997. We gave interested parties an opportunity to
comment on our preliminary results. Based on our analysis of the
comments received, we have changed the results from those presented in
the preliminary results of review.
EFFECTIVE DATE: June 16, 1998.
FOR FURTHER INFORMATION CONTACT: Laurel LaCivita or Alexander Amdur,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, N.W.,
Washington, D.C. 20230; telephone: (202) 482-4740 or (202) 482-5346,
respectively.
SUPPLEMENTARY INFORMATION:
The Applicable Statute
Unless otherwise indicated, all citations to the Tariff Act of
1930, as amended (the Act) are references to the provisions effective
January 1, 1995, the effective date of the amendments made by the
Uruguay Rounds Agreements Act (URAA). In addition, unless otherwise
indicated, all references to the regulations of the Department of
Commerce (Commerce) are as codified at 19 CFR part 353, as they existed
on April 1, 1997. Since the new regulations do not apply in these final
results, we should note that whenever the new regulations are cited,
they operate as a restatement of the Department's interpretation of the
Act. See !62 FR 27296 (May 19, 1997).
Background
On December 10, 1997, we published in the Federal Register (62 FR
65063) the preliminary results of administrative review of the
antidumping duty finding on viscose rayon staple fiber from Finland (44
FR 17156, March 21, 1979). We received a case brief from the sole
respondent, Kemira Fibres Oy (Kemira), on January 22, 1998, as amended
on January 30, 1998. The petitioners, Courtauld Fibers Inc. and Lenzing
Fibers Corporation, submitted a rebuttal brief on January 29, 1998. We
held a public hearing on February 5, 1998. The Department extended the
final results of this review until June 8, 1998. We are conducting this
administrative review in accordance with section 751 of the Act.
Scope of the Review
The product covered by this review is viscose rayon staple fiber,
except solution dyed, in noncontinuous form, not carded, not combed and
not otherwise processed, wholly of filaments (except laminated
filaments and plexiform filaments). The term includes both commodity
and specialty fiber. This product is currently classifiable under
Harmonized Tariff Schedule (HTS) item numbers 5504.10.00 and
5504.90.00. The HTS numbers are provided for convenience and customs
purposes. The written description of the scope of the finding remains
dispositive.
Scope Issues
Kemira claims that short-cut (LK) fiber and fire retardant (VISIL)
fiber are not covered by the scope of the order, while petitioners
claim that they are covered.
The Department included LK and VISIL fibers within the scope of the
order for the purposes of the preliminary results of this review (see
62 FR 65063). We stated in our notice of preliminary results that
because of the complexity of the issues relating to LK and VISIL
fibers, we would commence a scope inquiry to determine whether LK and
VISIL fibers are covered by the scope of the order.
We asked interested parties to submit comments on these scope
issues, which we analyzed pursuant to 19 CFR 353.29(d)(6). On matters
concerning the scope of an antidumping finding or duty order, the
normal bases for determining whether a product is included within the
scope are the descriptions of the product contained in the
determinations by the Department (or the Treasury Department) and the
ITC, the initial investigation, the petition and, if applicable, prior
scope rulings. See 19 CFR 353.29(i)(1). If these descriptions are not
dispositive, the Department refers to the criteria listed under 19 CFR
353.29(i)(2). By reference to the product descriptions provided by the
parties, as well as the descriptions of the product contained in the
final determinations of the Treasury Department and the ITC, and the
petition, the Department is able to determine whether LK and VISIL
fibers are covered by the scope of the order. Therefore, we have
determined that it is unnecessary to refer to the additional factors of
section 353.29(i)(2).
Based on our analysis under 19 CFR 353.29(i)(1), the Department has
determined that LK and VISIL fibers are within the scope of the
antidumping order on Viscose Rayon Staple Fiber from Finland. See June
8, 1998 Memorandum to Maria Harris Tildon from Holly Kuga Regarding
Whether Short-Cut (LK) Fiber And Fire Retardant (VISIL) Fiber Are
Within The Scope of the Finding (Order) on Viscose Rayon Staple Fiber
from Finland.
Analysis of the Comments Received
Comment 1: Kemira argues that the Department erroneously
reclassified certain export price (EP) sales made through its selling
agent in the United States as constructed export price (CEP) sales.
Kemira notes that all of the sales at issue were made prior to
importation based on the date the order was confirmed and shipped
directly from Kemira's factory to the customer in the United States.
Kemira argues that its selling agent in the United States, Newco Fibres
Company (Newco), relocates (in part) routine selling functions of the
company from Finland to the United States, and does not perform any
more selling functions in the United States than those U.S. entities in
various cases in which the Department concluded that the sales were EP
sales (see, Certain Stainless Steel Wire Rods from France, 58 FR 68865,
68869, (December 29, 1993); Certain Corrosion-Resistant Carbon Steel
Flat Products from Korea: Final Results of Antidumping Duty
Administrative Review, 61 FR 18547, 18552, (April 26, 1996)). Kemira
also argues that the Department's re-characterization of the sales at
issue is
[[Page 32821]]
contrary to the statute because Kemira was the seller to the unrelated
purchaser in all transactions, and Newco did not make any sales by or
for the account of Kemira.
The petitioners argue that the Department's reclassification of EP
sales to the United States made through Newco as CEP sales was
appropriate. The petitioners note that the Department relied on the
statutory definition of CEP, which is ``the price at which the subject
merchandise is first sold (or agreed to be sold) in the United States
before or after the date of importation by or for the account of the
producer or exporter of such merchandise.* * *'' (See, section 772(b)
of the Act .) The petitioners note that Kemira acknowledges that
``sales activities in the United States market are conducted by * * *
Newco,'' and argue that Newco plays a major role in the marketing of
Kemira's products, including negotiating sales and obtaining customer
orders. The petitioners further note that, although Newco passes all
sales documentation to Kemira for confirmation, in actuality such
confirmations appear to be routine. In fact, the petitioners note, it
does not appear that Kemira ever rejected any order confirmations
passed to it by Newco during the period of review (POR).
DOC Position: We agree with the petitioners. In our preliminary
results of review, we examined the facts of this case in light of the
statute with respect to EP and CEP sales. Section 772(b) of the Act, as
amended, defines CEP as ``the price at which the subject merchandise is
first sold (or agreed to be sold) in the United States before or after
the date of importation by or for the account of the producer or
exporter of such merchandise or by a seller affiliated with the
producer or exporter, to a purchaser not affiliated with the producer
or exporter, as adjusted'' (emphasis added). Section 772(a) of the Act
defines EP as ``the price at which the subject merchandise is first
sold (or agreed to be sold) before the date of importation by the
producer or exporter of the subject merchandise outside of the United
States to an unaffiliated purchaser in the United States, or to an
unaffiliated purchaser for exportation to the United States, as
adjusted.''
Furthermore, based on the Department's practice, we examine several
criteria for determining whether sales made prior to importation
through a sales agent to an unaffiliated customer in the United States
are EP sales, including: (1) Whether the merchandise was shipped
directly from the manufacturer to the unaffiliated U.S. customer; (2)
whether this was the customary commercial channel between the parties
involved; and (3) whether the function of the U.S. selling agent was
limited to that of a ``processor of sales-related documentation'' and a
``communications link'' with the unaffiliated U.S. buyer. Where all
three criteria are met, indicating that the activities of the U.S.
selling agent are ancillary to the sale, the Department has regarded
the routine selling functions of the exporter as merely having been
relocated geographically from the country of exportation to the United
States where the sales agent performs them, and has determined the
sales to be EP sales. Where one or more of these conditions are not
met, indicating that the U.S. sales agent is substantially involved in
the U.S. sales process, the Department has classified the sales in
question as CEP sales. (See, e.g., Certain Cold-Rolled and Corrosion-
Resistant Carbon Steel Flat Products from Korea: Final Results of
Antidumping Duty Administrative Reviews, 63 FR 13170 (March 18, 1998).)
Our analysis of the facts indicates that, while Kemira's alleged EP
sales meet the first two conditions, they fail to meet the third one.
Kemira employs Newco in the United States to negotiate contracts with
U.S. customers, including the negotiation of prices, for most of its
U.S. sales. All contracts are subject to acceptance by Kemira and
become effective upon Kemira's order confirmation. However, there have
been no cases to our knowledge in which the terms of sale have not been
accepted by Kemira during this POR. Therefore, the only difference that
is apparent between the claimed EP and CEP sales is the fact that the
claimed EP sales are shipped directly to the US customer; all other
functions performed by Newco for such sales are identical.
Consequently, we conclude that Newco, the agent in the United States,
is not merely a processor of sales-related documentation or a
communications link, but is, in fact, selling covered products in the
United States on Kemira's behalf. Therefore, under section 772(b), we
concluded that CEP treatment is also appropriate for sales made in the
United States prior to importation by Newco, on behalf of the producer
(i.e, Kemira), to an unaffiliated purchaser. We determine that EP
treatment is appropriate for Kemira's other sales made to the United
States before the date of importation which do not require the
employment of the sales agent in the United States. We have no further
information that would lead us to change our preliminary results with
respect to this issue; therefore, we have made no changes for the final
results of review.
Comment 2: Kemira argues that the Department should reconsider its
adverse facts available (FA) determination concerning Kemira's U.S.
sales of substandard merchandise. Kemira maintains that the Department
misinterpreted Kemira's statement in its questionnaire response that it
made sales of second-quality merchandise in the European market to mean
that it did not have sales in either Finland or the United States.
Kemira explains that it did not report its United States and Finnish
sales of second-quality merchandise because the Department did not
specify that such sales were covered by the review and should be
reported.
In support of the Department's preliminary determination on this
issue, the petitioners assert that it was appropriate for the
Department to make an adverse inference concerning Kemira's U.S. sales
of second-quality merchandise. The petitioners maintain that Kemira did
not report its home market or U.S. sales of second-quality merchandise
despite the fact that the Department twice requested Kemira to report
all sales of merchandise within the scope of the order, and that there
was no indication that second-quality merchandise was excluded from the
scope of the order. The petitioners also note that it was not until the
Department conducted verification that it discovered the existence of
these sales.
DOC Position: We agree with the petitioners. Section 776(a)(2) of
the Act provides that if an interested party withholds information that
has been requested by the Department, fails to provide such information
in a timely manner or in the form requested, significantly impedes a
proceeding under the antidumping statute, or provides information that
cannot be verified, the Department shall use FA in reaching the
applicable determination. Section 782(d) states that, if the Department
determines that a response to a request for information does not comply
with the request, it shall promptly inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person with an opportunity to remedy or
explain the deficiency.
In its original questionnaire of May 20,1997, the Department
requested Kemira to report all of its home market and U.S. sales of
subject merchandise in accordance with the instructions in the
questionnaire. Kemira did not report its home market and U.S. sales of
second-
[[Page 32822]]
quality and substandard merchandise. On August 15, 1997, the Department
issued a supplemental questionnaire to Kemira, again requesting Kemira
to report all sales of viscose rayon fiber that are not specifically
excluded from the scope of the finding. In its response to the
supplemental questionnaire, Kemira again did not report any home market
or U.S. sales of second-quality and substandard merchandise. The fact
that Kemira reported the existence of sales of substandard merchandise
in third countries, but, in response to two specific requests for
information, failed to report such sales in the United States, lead the
Department to believe that no such sales in the United States were made
during the POR. It was not until verification that the Department
discovered the existence of such sales.
In both requests for information, the Department advised Kemira
that failing to provide the requested information may result in the
application of FA. At verification, the Department was able to
determine what percentage of Kemira's total U.S. sales were of second-
quality merchandise. We observed that Kemira made a small quantity of
second-quality merchandise sales in both Finland and the United States.
(See Memorandum to Holly Kuga from Laurel LaCivita et. al. Regarding
Kemira Fibres Oy: Report on the Verification of Sales Information
Submitted in the 1996-1997 Review (Verification Report) of January 12,
1998.) Given Kemira's failure to report these sales, the existence of
which was verified by the Department, we applied FA to sales of second-
quality merchandise for the final results of review, in accordance with
section 776 of the Act.
Kemira's argument that it did not report its United States and
Finnish sales of second-quality merchandise because the Department did
not specify that such sales were covered by the review is unfounded.
There is nothing in the scope of the finding or the questionnaire that
would indicate that second-quality merchandise is excluded from the
scope of the finding. It is not required that the Department specify
which sales are covered by a review, so long as the scope covers the
merchandise sold. As the scope does not exclude second-quality
merchandise (an undisputed fact), Kemira is required to report U.S.
sales of such merchandise. Failure to do so warrants the application of
FA.
Section 776(b) of the Act provides that adverse inferences may be
used when a party has failed to cooperate by not acting to the best of
its ability to comply with requests for information. See also Statement
of Administrative Action (SAA) at 870. Kemira's failure to report the
sales data requested by the Department, despite the Department's
indication regarding the consequences of such an action, demonstrates
that Kemira has, to date, failed to cooperate to the best of its
ability in this review. Thus, in selecting among the FA for Kemira, an
adverse inference is warranted. Section 776(b) states that an adverse
inference may include reliance on information derived from: (1) The
petition; (2) the final determination in the LTFV investigation; (3)
any previous review under section 751 of the Act or investigation under
section 753 of the Act; or (4) any other information placed on the
record. See also SAA at 829-831.
We applied as adverse FA the highest calculated rate for Kemira
from any segment of the proceeding to the sales of second-quality
merchandise which were not reported to the Department. This rate of 8.7
percent is the margin calculated for Kemira in both the investigation
and in the first period of review (44 FR 2219, January 10, 1979 and 46
FR 19844, April 1, 1981).
Therefore, for the purposes of the final results of review, the
Department made no changes to the methodology applied in the
preliminary results of review.
Comment 3: Kemira contends that the Department's application of a
difference-in-merchandise (difmer) adjustment to different sizes of
VISIL is unwarranted. It argues that there is no difference in material
cost or material preparation between different sizes of fiber. Kemira
states that the only potential cost difference would be in spinning
time or cutting time, and such differences are minimal. Kemira argues
that its cost accounting system does not make any distinction by fiber
size, and that it reported all costs for VISIL fiber in accordance with
its cost accounting system. Kemira also argues that the information it
provided should have been accepted by the Department because the
information was accurate, consistent with Kemira's recorded costs, and
fully verifiable. Therefore, Kemira claims that the Department has no
basis for resorting to FA for the difmer adjustment.
The petitioners contend that the Department clearly acted within
its statutory authority in resorting to adverse FA in making a difmer
adjustment for VISIL sales. The petitioners note that Kemira took the
position in its questionnaire response that the variable cost of
manufacturing (VCOM) for VISIL fibers sold in the home market and to
the United States were the same, but at verification the Department
``observed that the time required to spin other non-VISIL fibers varied
with the fiber length and linear density.'' (See December 1, 1997
Concurrence Memorandum at 15). The petitioners also note that Kemira
failed to provide usable VCOM or total cost of manufacturing (TCOM)
data that would allow the Department to make difmer adjustments, and,
as a result, the Department made a difmer adjustment to normal value
(NV) for VISIL sales based on adverse FA.
DOC Position: We agree with the petitioners. Kemira failed to
appropriately report the information needed to calculate a difmer
adjustment. Kemira reported the same VCOM and TCOM for products with
different linear density and fiber length. The Department observed at
verification that spinning and cutting time varied with the fiber
length and linear density of the product (see December 1, 1997
Concurrence Memorandum at page 15). Although Kemira claims that its
cost system does not acknowledge costs on the basis of fiber length or
fiber width, and that any such differences are minimal, it failed to
produce any evidence supporting that contention or to explain what
Kemira considers to be a ``minimal'' difference. Kemira did not provide
any worksheets in its questionnaire response on VISIL sales, which was
submitted only a few days before the commencement of verification,
showing how the variable cost figures were determined, or what factors
were considered in its calculation of VCOM and TCOM, which impeded us
from pursuing verification of this information. Furthermore, Kemira's
claim contradicts a basic principal of cost accounting that, given
identical labor and overhead rates on the same production line, longer
production times on that line will result in higher production costs.
In an attempt to educate ourselves on the potential production cost
differences with respect to the fiber width of rayon staple fiber, we
spoke with a textile fiber expert on March 26, 1998, concerning the
relationship between the fiber width and spinning times. The expert
explained that there is a direct relationship between the fiber width
and spinning time, such that if the cross-sectional area of a fiber
(determined by the fiber width) increases in size, the spinning time
decreases proportionally. Similarly, if the fiber width decreases in
size, the spinning time increases by the same ratio. (See the April 8,
1998 Memorandum from Laurel LaCivita to the File Regarding The
Relationship Between Fiber Width and Processing Time.) Record evidence
indicates that
[[Page 32823]]
the fiber widths of the VISIL products sold in the United States and
the home market during the POR are at extreme ends of the fiber-width
spectrum. Consequently, we disagree with Kemira's position that
potential spinning times and cost differences attributable to
differences in fiber widths are insignificant in the calculation of the
difmer adjustment.
Therefore, while Kemira reported per-unit costs allegedly
calculated in accordance with its cost accounting system, such costs
were not usable in calculating a difmer adjustment for VISIL sales
because Kemira did not adjust its production costs to reflect
differences in fiber width. Section 776(a)(1) of the Act provides that
the Department may use facts available in situations in which the
necessary information is not available on the record. The Department
did not become aware that Kemira failed to provide VCOM and TCOM data
for VISIL fiber on the basis of fiber widths until verification, and
thus did not have appropriate information on the record to calculate
the difmer adjustment. Accordingly, to fill the gap, the Department
made a facts available upward adjustment to the NV equal to 20 percent
of the TCOM of the U.S. model. This is the maximum upward difmer
adjustment to the NV in accordance with 19 CFR 353.57 and Policy
Bulletin 92.2.
Accordingly, given that we have no other information on the record
on which to base the difmer adjustment, we have made no changes to our
preliminary results of review and have applied to NV an adjustment
equal to 20 percent of the TCOM of the U.S. model.
Comment 4: Kemira argues that the Department erroneously deducted
the full amount of the commission expense paid for VISIL sales in the
United States, when only a small portion of that expense qualifies as a
CEP deduction. Kemira explains that the agency agreement for VISIL
sales in the United States provided for declining ad valorem commission
rates on such sales, with a ``guaranteed commission'' paid in the event
that the sales did not reach a certain level or quota. Kemira notes
that the guaranteed commission was only paid because the sales quota
was not achieved, and that it would have been paid in the absence of
any VISIL sales at all. Consequently, Kemira argues that the guaranteed
commission is not a commission or a direct expense, but rather an
indirect selling expense. Kemira notes that the guaranteed commission
fits the definition provided in the Appendix I, p. I-6 of the
Department's questionnaire which defines indirect expenses as ``fixed
expenses that are incurred whether or not the sale is made. . . .''
Furthermore, Kemira argues that the guaranteed commission is a one-time
expense associated with initial U.S. marketing efforts for VISIL, and
is not an expense that is ``generally incurred'' in selling the subject
merchandise. Therefore, Kemira maintains that it is not a deductible
expense pursuant to section 772(d) of the Act, which provides that in
CEP transactions the U.S. price be reduced by the amount of expenses
``generally incurred'' in selling the subject merchandise in the United
States. Consequently, Kemira argues that only the ad valorem portion of
the commission expense would be ``generally incurred'' on VISIL sales
and should be applied to these sales as an indirect selling expense.
Kemira argues in the alternative that, if the Department includes
the guaranteed commission in its calculations, it should determine the
importer-specific assessment rate by dividing the amount of the
guaranteed commission paid by the quantity of the merchandise entered
during the POR. Kemira notes that based on the date of order
confirmation, the quantity of VISIL products that entered the United
States during the POR was at least twice as high as the quantity of
VISIL sold during the POR. Further, Kemira argues that if the
Department bases the assessment rate for VISIL sales on the margin
determined for VISIL sales (and not entries), the (unit) amount of the
guaranteed commission will be more than doubled.
The petitioners argue that the Department appropriately deducted
the guaranteed commission as a commission for sales during the review
period. They note that three facts are undisputed: (i) Kemira hired an
unrelated entity to act as Kemira's sales agent to market VISIL fiber
in the United States, (ii) Kemira agreed to pay an ad valorem
``commission'' to its sales agent, and (iii) Kemira agreed to guarantee
a minimum commission payment to its sales agent, which Kemira paid. The
petitioners argue that treating these payments as an indirect selling
expense, and not as a commission, would directly contradict the way in
which the parties themselves view the payment. The petitioners also
counter Kemira's assertion that the commission would have been paid in
the absence of any sales based on the terms of the agency agreement.
The petitioners also disagree with Kemira that the commission
expense should be allocated over all entries during the review period,
rather than over all sales during the period, as this would be a
significant departure from the Department's traditional manner of
allocating commissions which relate to sales based on an ad valorem
rate.
DOC Position: We disagree with Kemira that only a small portion of
the expenses paid under its agency agreement for VISIL sales in the
United States should be classified as an indirect selling expense and
deducted from CEP on this basis.
Commissions are payments to affiliated or unaffiliated parties
providing services that relate to the sale of merchandise, which are
normally treated as direct selling expenses if we find that they are at
arm's length (for commission paid to affiliated parties) and directly
related to the sale. In order to determine whether a claim for a
commission paid to an unaffiliated selling agent is a bona fide
commission, we examine the nature of the agreement or contract between
the producer and selling agent which establishes the basis for payment
of the commission and for services rendered in return for payment. (See
Revised Import Administration Antidumping Manual, Chapter 8 at 35-37,
January 1998.)
In this case, our examination of the terms of the agency agreement
(contract) between Kemira and its U.S. selling agent shows that the
agreement exists for the sole purpose of making VISIL sales in the
United States during a specific time period, and stipulates that the
agent be paid a commission based on declining ad valorem rates in
accordance with the quantity of VISIL sold, and a guaranteed commission
in the event U.S. VISIL sales did not reach a certain level. (See
verification exhibit 12 and footnote 16 on page 16 of the December 1,
1997 Concurrence Memorandum for a proprietary description of the manner
in which the guaranteed commission is tied to the U.S. sales value of
VISIL products.) Contrary to Kemira's claim, the guaranteed commission
paid under this agreement constitutes a direct selling expense
specifically attributable to VISIL sales only and is not generally
incurred in selling the subject merchandise in the United States.
Consequently, we agree with the petitioners that the guaranteed
commission incurred on VISIL sales represents a commission covering
sales during the review period. Therefore, we have made no changes
since the preliminary results of review with respect to this issue, and
have allocated all of the commission expense incurred during the review
period over the value of sales made during the review period in
accordance with our normal
[[Page 32824]]
methodology. Also, we will follow our normal assessment practice of
allocating the amount of the uncollected dumping duty over the entered
value of sales reported on the computer sales listing.
Comment 5: Kemira noted its agreement with the Department's
treatment of certain entries of LK and VISIL fiber and supports our
preliminary determination to exclude them from its margin calculation.
Kemira also believes that, if LK and VISIL are found to be in the scope
of the order, these entries should nonetheless be ``liquidated without
any assessment of antidumping duties'' since these transactions were
not reviewed.
DOC Position: As we stated in our preliminary results of review, we
excluded three types of sales from our calculations. First, we excluded
zero-priced samples from our dumping margin calculations. Second, we
excluded sales that were shipped to the United States by a third-
country reseller if the respondent did not have any reason to know at
the time of sale that the merchandise was destined for the United
States (for a detailed explanation, see December 1, 1997 Concurrence
Memorandum). Third, we excluded sales that were entered and liquidated
prior to the reinstatement of this antidumping order and resumption of
the suspension of liquidation on February 22, 1996 (61 FR 6814). The
latter sales were excluded only if we were able to link them directly
to an entry prior to the suspension of liquidation (see, e.g., Certain
Stainless Steel Wire Rods From France: Final Results of Antidumping
Duty Administrative Review, 61 FR 177, (September 11, 1996)).
In our final results of review, we made no changes in our
methodology for determining the weighted-average margin. However, in
accordance with NSK Ltd., et al v. United States, 969 F. Supp. 34 (CIT
1997), we have adjusted our assessment calculations to ensure that no
duties are collected on the zero-priced samples that we excluded from
our calculations. We have included the entered values of the zero-
priced samples in our calculation of the assessment rates and set the
dumping duties due for such transactions to zero. We have done this
because U.S. Customs will collect the ad valorem duty-assessment rate
on all entries of subject merchandise regardless of whether the
merchandise was a zero-priced sample.
We have made no further adjustments for the other sales that we
excluded from our margin calculations. Sales that entered into the
United States prior to the reinstatement of this antidumping order have
been liquidated and all other sales are subject to the order.
Comment 6: Kemira claims that the Department erroneously failed to
convert domestic brokerage expense (DBROKU) and packing expense
(USPACK) from Finnmarks (FIM) to U.S. dollars (USD) for sales of LK
fiber.
DOC Position: We agree and have multiplied the domestic brokerage
and packing expenses for LK fiber sales to the United States by the
exchange rate on the date of the U.S. sale to convert these expenses to
U.S. dollars for the final results of review.
Comment 7: Kemira argues that the Department failed to follow the
model match hierarchy described in the notice of the preliminary
results of review. Specifically, it did not match sales to the United
States with the identical merchandise sold in the home market in the
same month as, or the closest month to, the month of the U.S. sales.
DOC Position: We agree. We inadvertently failed to include the
variable WNDORDER in the model-match hierarchy in the computer program.
Consequently, the program did not take the appropriate order of the
window period into account when making its model-match selections.
Therefore, we have modified our calculations to include this variable,
thereby implementing the model-match hierarchy described in our notice
of the preliminary results of review.
Comment 8: Kemira maintains that the Department incorrectly double-
counted the deduction for marine insurance in its calculations by
including it in both the variables for movement expense expressed in
dollars (USMOVT) and movement expense expressed in foreign currency
(HMMOVT). Kemira argues that the Department should eliminate marine
insurance from one of these two variables.
DOC Position: We agree and have eliminated marine insurance
expenses from the calculation of HMMOVT.
Final Results of Review
As a result of our review, we have determined that the following
margins exist:
------------------------------------------------------------------------
Margin
Manufacturer (Percent)
------------------------------------------------------------------------
Kemira Fibres Oy........................................... 2.41
------------------------------------------------------------------------
Assessment Rates
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. The Department
will issue appraisement instructions directly to the U.S. Customs
Service. The final results of this review shall be the basis for the
assessment of antidumping duties on entries of merchandise covered by
the final results of this review and for future deposits of estimated
duties. For assessment purposes, we calculated importer-specific
assessment rates for viscose rayon staple fiber. For both EP and CEP
sales, we divided the total dumping margins (calculated as the
difference between NV and EP (or CEP)) for each importer) by the
entered value of the merchandise. We will direct Customs to assess the
resulting ad valorem rates against the entered value of each entry of
the subject merchandise by the importer during the POR.
Furthermore, the following deposit requirements will be effective
upon publication of this notice of final results of review for all
shipments of viscose rayon staple fiber from Finland entered, or
withdrawn from warehouse, for consumption on or after the publication
date, as provided by section 751(a)(1) of the Act: (1) The cash deposit
rate for the reviewed company will be that established in these final
results of this administrative review; (2) for previously reviewed or
investigated companies not listed above, the cash deposit rate will
continue to be the company-specific rate published for the most recent
period; (3) if the exporter is not a firm covered in this or a previous
review or the LTFV investigation, but the manufacturer is, the cash
deposit rate will be the most recent rate established for the
manufacturer of the merchandise; and (4) the cash deposit rate for all
other manufacturers or exporters will be 3.9 percent, the ``new
shipper'' rate established in the first review conducted by the
Department, as explained below.
On March 25, 1993, the Court of International Trade (CIT) in Floral
Trade Council v. United States, 822 F.Supp. 766 (CIT 1993) and Federal-
Mogul Corporation v. United States, 822 F.Supp. 782 (CIT 1993) decided
that once an ``all others'' rate is established for a company, it can
only be changed through an administrative review. The Department has
determined that in order to implement the above-mentioned decisions, it
is appropriate to reinstate the ``all others'' rate from the LTFV
investigation (or that rate as amended for correction of clerical
errors or as a result of litigation) in proceedings governed by
antidumping duty orders.
However, in proceedings governed by antidumping findings, unless we
are able to ascertain the ``all others'' rate from the Treasury LTFV
investigation,
[[Page 32825]]
the Department has determined that it is appropriate to adopt the ``new
shipper'' rate established in the first final results of administrative
review published by the Department (or that rate as amended for
correction of clerical errors as a result of litigation) as the ``all
others'' rate for the purposes of establishing cash deposits in all
current and future administrative reviews (see, e.g., Final Results of
Antidumping Duty Administrative Review of Tapered Roller Bearings, Four
Inches or Less in Outside Diameter, and Components Thereof, From Japan,
58 FR 64720, (December 9, 1993)).
Therefore, the ``all others'' rate applied is the rate of 3.9
percent from Viscose Rayon Staple Fiber From Finland, Final Results of
Administrative Review of Antidumping Finding (46 FR 19844, April 1,
1981), the first review conducted by the Department in which a ``new
shipper'' rate (or in this case, a rate for all shipments of the
subject merchandise, including new shippers) was established.
These deposit requirements, when imposed, shall remain in effect
until publication of the final results of the next administrative
review.
This notice also serves as a reminder to importers of their
responsibility under 19 CFR 353.26 to file a certificate regarding the
reimbursement of antidumping duties prior to liquidation of the
relevant entries during this review period. Failure to comply with this
requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 353.34(d). Timely written notification of
return/destruction of APO materials or conversion to judicial
protective order is hereby requested. Failure to comply with the
regulations and the terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
Dated: June 8, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 98-15872 Filed 6-15-98; 8:45 am]
BILLING CODE 3510-DS-P